Albert L. Peia, Pro Se

P.O. Box 862156

Los Angeles, CA 90086

(213)219-7649

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHWEST DISTRICT, VAN NUYS, CA

-------------------------

Albert L. Peia,Plaintiff ) Case No. 03E05206

-vs- )

Rene Lopez DeArenosa,et) Plaintiff’s

als, John Does 1 – 10, ) Declaration and Exhibits In

Defendants ) Response to Order to Show Cause;

) Memorandum of Points and

------------------------- Authorities; Certification of Service.

Hearing Date:6-7-05

Time:8:45am

Courtroom:Div 108

Albert L. Peia, of full age, hereby declares under penalty of perjury as follows:

This declaration, exhibits (immediately appended hereto with index and numbered

1-50), and Memorandum of Points and Authorities is offered in response to the Order

to Show Cause, and in Support of a Motion for Reconsideration of the Summary

Judgment Motion in Light of the Dismissal of the Case on the Return Date for Said

Summary Judgment Motion, the Reversal of Same on Appeal on Procedural/Substantive Due

Process Grounds, and a Clarification of the Record Apparently Misconstrued By the Instant

Court. Plaintiff appeared for trial in the matter before Judge Keosian at which time plaintiff

and defendant Ojeda ultimately arrived at a settlement as to Mr. Ojeda only, for an amount of

one half ($7,500) the sum certain amount. The cause of action in that case (as to Mr. Ojeda)

was tortious interference with contract (other defendant dismissed at time of prior prove-up-

prejudice), the demurrer to which had been overruled. I subsequently offered, without

expiration date, to defendant DeArenosa (this case) resolution of the within case for the same

$7,500 amount (in good faith and in light of my representation to the Appellate Court that a

pro tanto reduction would obtain from any recovery in said matter, although a different cause

of action). Said offer has not been withdrawn and is hereby stipulated to herein

(regardless of whether the separate sum certain is entered by summary

judgment/trial/sanction and regardless of punitive damages).

Preliminary Statement

The Verified Complaint is an action sounding in fraud and deceit

2. The complaint in the instant matter is a verified Complaint sounding in fraud and deceit, the averments of which are set forth under penalty of perjury. The subject defendant DeArenosa’s answer and defenses were stricken. The clearly documented crime of perjury for which plaintiff sought a criminal referral for criminal prosecution of said perjury, gave rise to the instant causes of action which arose in the case presently before Honorable Gregory Keosian, Judge, Superior Court of California, case #02E07192.

3. Plaintiff moved in the court of Judge Keosian for an order to transfer and/or consolidate the instant case with that case number 02E07 192. Said jointly captioned (and filed in both subject courts pursuant to court rules) motion was denied by Judge Keosian on 9-30-04 who ruled that there were no facts or causes of action common to both cases, Judicial Notice of said ruling being respectfully requested herein [Exhibits at page 39, Minute Order of Ruling of Honorable Gregory Keosian Dated 9-30-03].

4. Plaintiff had previously requested Judicial Notice of case # 02E07192 before Judge Keosian in the dual-captioned motion for transfer and/or consolidation concurrently filed in this case #03E05206 before the instant court [Exhibits at page 49, Dual-captioned motion for transfer and/or consolidation-Cover Page].

5. Plaintiff had filed a motion for Summary Judgment which was carried to December 11, 2003, at which time this court denied same dismissing without prejudice the present case, stating, despite Judge Keosian’s prior and contrary ruling, that this case was substantively the same as and being resolved in case #02E071 92. [Exhibits at page 50, Minute Order].

6. In fact, there were and are no causes of action for perjury, but rather the perjurious declaration of defendant DeArenosa being the documented fact of the materially false representation giving rise to the causes of action for fraud and deceit.

7. Indeed, plaintiff was ordered to show cause why the complaint should not be dismissed for failure to state a cause of action (for perjury). Plaintiff fully briefed pursuant to said OSC and appeared before Judge Kaplan elucidating to the court in accordance with Witkin, the only causes of action for fraud and deceit as clearly set forth in the complaint, which causes of action were properly sustained and for which Judicial Notice is also respectfully requested herein [Exhibits at page 21-27, Memo Only- Response/Memorandum of Law OSC 5-15-04].

8. Plaintiff brought the instant action by way of verified Complaint sounding in fraud and deceit in the Superior Court of the State of California, County of Los Angeles, (with a Demand for Damages in the amount of $35,000, inclusive of punitive damages), filed on September 26, 2002 [Exhibits at page 2-9, Plaintiff’s Verified Complaint with Exhibits Incorporated by Reference Thereto]. The Civil Case Cover Sheet indicates two causes of action; viz., fraud and deceit [Exhibits at page 1, Civil Case Cover Sheet].

9. Defendant DeArenosa’s Answer had been properly stricken for having failed to respond to an Order to Show Cause. [ Minute Order of J. Kaplan Striking Answer/Defenses].

10. Plaintiff’s Notice and Response to Order to Show Cause/Stipulation on a

subsequent OSC returnable 5-29-05 preceded transfer to the instant court of limited

jurisdiction [Exhibits at pages 28-30, Response OSC/Stipulation].

12. Plaintiff upon review of the Authorities prior to drafting and filing the instant Verified Complaint posited jurisdiction as appropriate in light of the sum certain amount of money damage ($15,000, after prove-up hearing), other compensatory damages, and punitive damages (given the intentional/illegal nature of the cause, an amount within the “substantive guideline” for punitive damages-less than “one times” compensatory damages) for a total of $35,000. Plaintiff at all times and remains primarily concerned with the sum certain amount of $15,000 as set forth in the Verified Complaint as previously determined at the prove-up hearing before Judge Petersen on 5-8-01 (in what is now case #02E07192) and stipulated to the transfer of the case to one of limited jurisdiction upon order to show cause concerning same after Judge Kaplan sustained the causes of action for fraud and deceit on briefing by plaintiff pursuant to a prior order to show cause by J. Kaplan [Exhibits at pages 21-27, Response OSC 5-15-04].

The instant case arises from the subject clear, incontrovertible crime(s) of

perjury/fraud committed by defendant, DeArenosa, and plaintiff had sought the

criminal referral of same. While the gravamen of the causes of action set forth in

the instant verified complaint is the crime of peijury committed by defendant DeArenosa,

the same is subsumed in the civil causes of action sounding in fraud and deceit as set forth

in plaintiffs verified complaint and well recognized in the State of California as set forth in

plaintiffs memorandum of points and authorities pursuant to prior order to show cause by

Judge Kaplan sustained said causes of action before transferring to the court (of limited

jurisdiction)below upon stipulation by plaintifl7appellant [Exhibits at pages 21-27,Response

OSC 5-15-04]. A money judgment in the amount of$ 15,000 was entered in plaintiff’s favor

on 5-8-01 after a prove-up hearing on said date [Exhibits at page 2-9, Plaintiff’s Verified

Complaint without incorporated Exhibits].

A declaration under penalty of peijury was submitted by defendant DeArenosa to the

state court entering said judgment after prove-up hearing in an attempt to set said money

judgment aside[Exhibits at page 2-9, Plaintiff’s Verified Complaint without incorporated

Exhibits) Defendant DeArenosa was aware that said declaration was false as indicated in

his letter dated 2-21-01 acknowledging receipt of Request to Enter Default/Default

Judgment (with declaration)[ Exhibits at page 2-9, Plaintiff’s Verified Complaint without

incorporated Exhibits]. Said declaration of defendant DeArenosa dated 6-8-0 1

perjuriously and falsely denied having received same [Exhibits at page 2-9, Plaintiff’s

Verified Complaint without incorporated Exhibits].

Said declaration was intentionally and materially false in light of the diligence

requirement of CCP Section 473 under California law, and made with the intention of

inducing reliance, was relied upon by the presiding judge Petersen of defendant Superior

Court of the State of California on 8-01-01 in setting aside the judgment entered in

plaintiff’s favor after prove-up hearing on 5-8-01,, and known by defendant DeArenosa to

be false. Plaintiff was further prejudiced inasmuch as plaintiff dismissed in accordance

with court rules as to co-conspirator defendant Robles for an amount approximating

plaintiffs costs incurred in bringing a then pending discovery motion. In the aforesaid

matter underlying defendant DeArenosa’s crime of perjury, he had previously been

sanctioned by the Court for failing to appear and respond to a prior Order to Show Cause.

In the instant case, defendant DeArenosa offered no response to the Order to Show

Cause in his “answer” (sic) and upon being queried by the Court as to whether he

understood what having his answer stricken meant, he, defendant DeArenosa responded

affirmatively, “yes”, without either objection or further discussion (despite being accorded

the opportunity for same at that time — probably, and I am inferring beyond the scope of

the declaration certification and not a part thereof, thankful for the Court’s mercy in not

having him arrested for his crime of perjury). I filed opposition to and opposed at the

hearing, DeArenosa’s motion for reconsideration of the Court’s Ruling striking his answer

and defenses which Judge Kaplan denied.

17. Indeed, plaintiff was ordered to show cause why the complaint should not be dismissed for failure to state a cause of action (for perjury). Plaintiff fully briefed pursuant to said OSC and appeared before Judge Kaplan elucidating to the court in accordance with Witkin, the only causes of action for fraud and deceit as clearly set forth in the complaint, which causes of action were properly sustained and for which Judicial Notice is also respectfully requested herein.

LEGAL ARGUMENT – THE LAW

Point I. Judicial Notice Of Prior Decision/Ruling of Honorable Gregory Keosian Dated 9-30-03, as well as that of Judge Kaplan on 5-15-03 wherein plaintiff’s causes of action for fraud and deceit were sustained, Along With the Doctrine of Res Judicata (collateral estoppel, by record or otherwise), Preclude Dismissing the present case, since this case is not substantively the same as and resolved in case #02E07192, and that it was not a cause of action for perjury but for fraud and deceit.

In accordance with Witkin, the only causes of action for fraud and deceit as clearly set forth in the complaint ,which causes of action were properly sustained and for which Judicial Notice is appropriate as a matter of law. Additionally, plaintiff had moved in the court of Judge Keosian for an order to transfer and/or consolidate the instant case before this court, with that case number O2EO7l92 before Judge Keosian. Said jointly captioned (and filed in both subject courts pursuant to court rules) motion was denied by Judge Keosian on 9-30-04 who ruled that there were no facts or causes of action common to both cases, Judicial Notice of said ruling is also appropriate herein [ Notice of Related Cases/Motion to Transfer/Consolidate Ruling].

CCP §437e(b) codifies matters judicially noticed.

Ev.C. §452(d) provides that a court may take judicial notice of of the records In the pending action , or In any other action pending in the same court or any other court of record In the u.s..

[Though factually distinguishable from the instant case, see generally, ie., Bistawros v. Greenberg, 189 CA3rd 189, 192, 234 CR 377,3 78 (1987)].

Point II. The Answer and Defenses Of Defendant DeArenosa Were Stricken And Summary Judgment As Filed and Requested By Plaintiff Should Be Entered As A Matter Of Law.

The following Memorandum was filed pursuant to the OSC by Judge Kaplan who thereupon sustained the causes of action for fraud and deceit as set forth in plaintiff’s verified complaint and which is apposite in pertinent part herein (plaintiffs summary judgment motion was denied owing to technical deficiency in failing to use the two column format in the statement of uncontroverted facts which defect was cured and refiled after transfer to court of limited jurisdiction, the instant court):

____________________________________

MEMORANDUM OF LAW IN RESPONSE Hearing Date: 5-15-03

TO ORDER TO SHOW CAUSE; Time: 9:00 A.M.

POINTS AND AUTHORITIES. Courtroom: “NWB”

FACTS

The instant case arises, from the subject clear, incontrovertible crime(s) of perjury/fraud by defendant,DeArenosa, and also, afortiori, mandate the criminal referral of same forthwith. Plaintiffs Separate Supplemental Statement of Uncontroverted Facts is appended hereto and jncorporated herein by reference thereto. While the gravamen of the causes of action set forth in the instant complaint is the crime of peijury committed by defendant DeArenosa, the same is subsumed in the civil causes of action of fraud and deceit set forth in plaintiff’s verified complaint and well recognized in the state of California as set forth infra.

THE LAW

Introduction

A motion for summary judgment provides a procedure for terminating without trial actions in

which “there is no genuine issue of material fact and ... the moving party is entitled to

judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct.2548,

2554(1986). Moreover, a motion for summary judgment “pierces” the pleadings and puts the

opponent to the test of affirmatively coming forward with sufficient evidence for its claims or

defenses to create a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106

S.Ct. 2548,2554(1986). The nonmovant must produce “significantly probative” evidence to

defeat the summary judgment motion. It is not enough for the nonmovant to rely on mere

allegations or denials of the movant’S pleading, United States v. Shumway, 199 F3rd 1093,

1104(9th Cir. 1999), or to present unsworn documents or papers containing nothing more that

the nonmovant’s speculations. Slowiak v. Land O’Lakes,Inc. 987 F.2nd 1293,1295-1297(7^th

Cir.1993)(ie., unexplained contradictory affidavits, etc.).

In the case sub judice, defendant DeArenosa’s Answer has properly been stricken (having been accorded an opportunity to respond and failing to do so) leaving barren and without defense, the blatent fraud and deceit perpetrated herein. Indeed, it is respectfully submitted that as such, in light of the Summary Judgment Motion by Plaintiff concurrently pending herein, the issue discussed hereinafter is rendered moot, and Judgment should enter in plaintiff’s favor as a matter of law.

Policy Considerations

Plaintiff’s Verified Complaint Has Averred Causes of Action Sounding in Fraud and

Deceit and Judgment for the Sum Certain Amount Requested by Plaintiff Should be

Entered as a Matter of Law.

It is axiomatic and a well settled rule of law that,

‘To recover on a claim for misrepresentation it is not always necessary to prove that the misrepresentation was made directly to the person who claims to have been injured as lon~ as injured party is able to prove that damages resulted from the deceit.’ 37 Am Jur2 §293.

Witkin, California Pleading §668 at 123 states,

‘The elements of the tort cause of action for damages for deceit have been listed in various ways, the differences being accounted for usually by the manner in which certain closely connected items are combined in a single phrase. Apart from these differences, the authorities are in agreement as to the following essential allegations:

(1)representatlon; (2)falsity; (3)knowledge of falsity; (4)intent to deceive; (5)reliance and resulting damage...’[Citations OmittedJ.

In the present case, the foregoing requisite elements for the causes of action for (fraud and)

deceit are clearly set forth in

(1) Plaintiff’s Verified Complaint, COUNTS ONE (fraud) and THREE (deceit),

respectively;

(2) Plaintiff’s Motion for Summary Judgment including Plaintiffs Declaration in Support thereof and Exhibits thereto as well as the Separate Statement of Uncontroverted Facts; and,

(3) Plaintiffs Response to the Order to Show Cause including the within Memorandum of Points and Authorities, Plaintiff’s Declaration in Support thereof, and Plaintiffs Supplemental Separate Statement of Uncontroverted facts, all of which are incorporated herein by reference thereto.

As such, it is respectfully submitted that judgment in the sum certain amount of $15,000 should enter in plaintiffs favor as a matter of law (minus pro tanto $7,500 reduction as stipulated by plaintiff herein).

Sanctions (ie., judgment) are appropriate as to defendant DeArenosa owing to his prior inconsistent, perjurious declaration. See generally, Acrotube. Inc. v. J.K. Fin’l Group. Inc., 653 F.Supp. 470(ND GA 1987); Van T. Junkins & Assoc. v. United States Indus., Inc. 736 F2d 656(11th Cir.1984). Moreover, policy considerations (against perjury in the legal process) mandate the entry of summary judgment herein, particularly where busy courts and movants are (through said bad faith denials predicated on perjury) drawn into the lengthy process of litigation thereby. Actual deception is not necessary to prove willful deception of a court and it is sufficient that the offending attorney knowingly presents a false statement which tends to mislead the court, see, i.e., Davis v. State Bar, 33 Cal. 3d 231 (1q83). Indeed, as in the instant case, the representation to a court of facts known to be false is presumed intentional and is a violation of the attorney’s duties as an officer of the court, Jackson v. State Bar, 23 Cal.3d 509(1979); warranting discipline, see Bus. & Prof. Code, § 6068, subd.(d); Di Sabatino v. State Bar, 27 Cal.3d 159 (1980); and constituting moral turpitude. Bach v. State Bar, 43 Cal.3d 848 (1987); even warranting disbarment for forgery and perjury, even in the absence of injury, Hizar v. State Bar, 20 C2d 223 (1942), although plaintiff has indeed been injured by defendant DeArenosa’s fraud/deceit/Perjury. Moreover, as set forth hereinabove, defendant DeArenosa committed fraud and deceit by filing with the Superior Court of California, County of Los Angeles, a pei)urious declaration that was intentionally and materially false in light of the diligence requirement of CCP Section 473 under -California law, and made with the intention of inducing reliance, was relied upon by the presiding judge Petersen of defendant Superior Court of the State of California on 8-01-01 in setting aside the judgment entered in plaintiff’s favor after the prove-up hearing on 5-8-01 and after dismissal by plaintiff of the remaining co-defendant (prejudice to plaintiff and foreseeably and purposefully damaging plaintiff), and known by defendant DeArenosa to be false. As such, plaintiff has been damaged as a direct consequence of said fraud and deceit and, in light of Judge Keosian’s 9-30-04 ruling that there were no facts or causes of action common to both cases, Judicial Notice of said ruling being respectfully requested herein. j. marcus’ minute order belies the previously articulated and formerly written misguided and erroneous substance of his tentative and bench ruling inasmuch as there were no causes of action for perjury, but rather the perjurious declaration of defendant DeArenosa being the documented fact of the materially false representation giving rise to the causes of action for fraud and deceit. Indeed, plaintiff was ordered to show cause why the complaint should not be dismissed for failure to state a cause of action (for perjury). Plaintiff fully briefed pursuant to said OSC and appeared before Judge Kaplan illustrating to the court in accordance with Witkin, the only causes of action for fraud and deceit as clearly set forth in the complaint, which causes of action were properly sustained and for which Judicial Notice is also respectfully requested herein.

CONCLUSION

For all of the foregoing reasons and in the paramount judicial interests of truth and justice, it is respectfully submitted that judgment in the sum certain amount of $15,000 should enter in plaintiffs favor as a matter of law (minus pro tanto $7,500 reduction as stipulated by plaintiff herein).

Respectfully Submitted,

Albert L. Peia, Pro Se

Dated: , 2005

REQUEST FOR JUDICIAL NOTICE

Judicial Notice of Judge Keosian’s 9-30-04 ruling (case number 02E07 192) that there were no facts or causes of action common to both cases is respectfully requested herein, along with all rulings, orders to show cause and plaintiff’s responses thereto, including that of 5-15-03 before Judge Kaplan (this case before plaintiff’s stipulation to transfer to case of limited jurisdiction now before J. Greg Marcus) wherein plaintiff’s causes of action for fraud and deceit were sustained.

Albert L. Peia, Pro Se

Dated: , 2005

CERTIFICATION OF SERVICE

I, Albert L. Peia, hereby certify that a copy of declaration, exhibits, and Memorandum of Points and Authorities, have been served by regular first class U.S. mail, postage prepaid, on this _____ day of , 2005, upon the following:

Rene Lopez De Arenosa

7542 Lankershim Blvd., Suite 2

North Hollywood, CA 91605-2804

Dated: -05 Signed: _____________________________

Albert L. Peia, Pro Se